If you have lost a loved one due to the negligent conduct of another, contact Powers & Santola, LLP. For more than three decades, we have helped families in Albany, Syracuse and throughout New York to recover for their losses and move on with their lives. We can review the specific facts of your case in a free consultation and explain your legal rights and options in more detail.

Potential Claims Due to a Loved One’s Wrongful Death

If your loved one, or the “decedent,” died due to the negligent actions (or failure to act) of another, you may be eligible to pursue two claims:

Wrongful death – This cause of action is brought on behalf of the decedent’s “distributees” who have suffered “pecuniary injuries” resulting from the death. A distributee is one who would be entitled to a share of the decedent’s property under New York’s intestacy statutes, or Estates Powers and Trust law (EPT). A surviving spouse, children or parents typically are distributees. Pecuniary injuries are calculable financial losses.

Survival – This cause of action is brought on behalf of the decedent’s estate to recover for the decedent’s conscious pain and suffering between the time of injury and death. The will of a decedent may determine who is eligible to recover in this cause of action. If there is no will, then eligibility is determined by the intestacy statutes.

A wrongful death claim generally must be filed within two years after the date of the death. This is one reason why it is crucial to seek legal help as soon as possible after the death of a loved one.

Who Can Bring a Wrongful Death Claim?

A wrongful death lawsuit in New York can be brought by only the “personal representative” of the decedent’s estate. The personal representative can be an executor named in a will. If no executor is named, a person would need to be appointed as an administrator of the estate by the Surrogate’s Court in the county where the decedent lived at the time of death. An attorney from Powers & Santola, LLP, can help with this process.

How Is a Wrongful Death Recovery Established?

A wrongful death claim requires showing that the decedent’s death was caused by the “wrongful conduct or default” of another, which would have allowed the decedent to pursue a cause of action if he or she had not died.

In this sense, a wrongful death action requires proof that is similar to a personal injury claim. The evidence will depend on whether the death involved medical negligence, a construction accident, auto crash, slip and fall or other case type.

The decedent’s comparative fault also will be a factor. The party being sued, or the defendant, may claim the decedent’s own negligence led to his or her death and that any recovery should be reduced in proportion to this degree of fault.

A survival action for pain and suffering requires showing that the decedent was conscious for a period, however brief, between injury and death. The severity of the injuries and duration of the pain and suffering are among factors considered.

What Can Be Recovered in a Wrongful Death Claim?

A wrongful death lawsuit can seek the recovery of “fair and just compensation” for the pecuniary injuries that the distributees have sustained due to the death. These injuries generally include the loss of support, assistance and possible inheritance. They do not include compensation for a survivor’s sorrow from the loss.

Damages are awarded “in proportion to the pecuniary injuries” suffered by the distributee. So, the amount awarded individually may depend on many factors, including the relationship to the decedent. For instance, a spouse may seek a recovery for the loss of the decedent’s services around the home, while a child may seek a recovery for the loss of a parent’s guidance.

An expert typically is called on to evaluate a case and provide an opinion on matters such as the loss of a decedent’s future earnings. Damages cannot be based on mere speculation.

Additionally, a wrongful death lawsuit may seek the recovery of:

Reasonable medical expenses arising from the injury which led to the death

Reasonable funeral expenses paid by the distributees

Punitive damages (if the decedent could have recovered those damages if he or she had survived).

A settlement of the wrongful death claim must receive court approval. The amount of the settlement is placed in a trust account and then distributed. If a party is a minor, incompetent, incarcerated or suffers from a disability, a guardian ad litem may be appointed to protect the party’s interests.

Contact a Wrongful Death Lawyer Serving Albany and Syracuse

The lawyers of Powers & Santola, LLP, understand the difficult of pursuing a legal claim while still grieving over the loss of a loved one. We bring compassion to our work and understand that our role is to use our legal skill and experience to help with a family’s healing. To learn more about our approach to wrongful death claims, please call or connect with us online today.

Sources / More Information

New York Code – Click on “EPT” and go to Article 5, Part 4 to read New York’s wrongful death statutes.

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